Smoking/No Smoking Areas; Final Rule DEPARTMENT OF JUSTICE

SUMMARY: In this document, the Bureau of Prisons is revising and

reorganizing its regulations on Smoking/No Smoking Areas. As revised,

designated smoking areas at the Bureau's medical referral centers and

minimum security institutions ordinarily shall be outside of buildings

and away from entrances. Wardens at all low, medium, high, and

administrative institutions other than medical referral centers may

continue, but are not required, to designate indoor smoking areas in

addition to outdoor smoking areas. Additional provisions have been

revised or reorganized for the sake of clarity or to avoid redundancy.

This amendment is intended to provide for a clean air environment and

to protect the health and safety of staff and inmates.

DATES: Effective August 1, 1994. Bureau Wardens may request up to a six

month extension for compliance.

ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,

320 First Street, NW., Washington, DC 20534.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General

Counsel, Bureau of Prisons, phone (202) 514-6655.

SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its

regulations on Smoking/No Smoking Areas. A final rule on this subject

was published in the Federal Register on November 16, 1989 (54 FR

47753).

On February 8, 1994, the Bureau of Prisons published a proposed

rule requiring that ``smoking areas'' to be designated by Wardens at

medical referral centers and at minimum security institutions shall

ordinarily be outside of all buildings and away from all entrances so

as not to expose others to second-hand smoke. As for the remaining

Bureau institutions, the proposed rule specifies that the Warden may,

but is not required to, designate indoor smoking areas in addition to

outdoor smoking areas. The proposed rule also reorganized and revised

the regulations for the sake of clarity and to avoid redundancy. For

example, the regulations had contained cross references qualifying

those locations where smoking ordinarily was not permitted. Because the

Warden is responsible for designating smoking areas, ordinarily only

where the needs of effective operations so require, the Bureau deems it

unnecessary to list in its revised regulations specific locations which

would still be subject to the Warden's discretion. The listing of these

locations has therefore been removed from the regulation, but remains

as guidance in implementing instructions to staff. The revised

regulations also contain a nomenclature change in which the title

``Warden'' has been substituted for ``Chief Executive Officer''.

The comment period closed on April 11, 1994. The Bureau received

comments from only one respondent. The commenter, a public health

interest group, stated that it supported the proposal and believed it

to be an important health measure. The commenter further recommended

that in the cases in which the Warden decides to designate an indoor

smoking area, the area should be separately ventilated so that the air

is vented directly to the outside and does not mix with the air

circulating in other parts of the facility. Finally, the commenter

stated that it believed it essential that smoking cessation services

for employees and inmates be made available as part of a policy for a

smokefree environment.

In response to these comments, the Bureau wishes to note that

guidance on ventilation requirements for indoor smoking areas is

provided in its internal instructions to staff. Given the limited

number of indoor smoking areas which may be authorized under

Sec. 551.163(b) and the constraints of operations in a correctional

setting, the Bureau believes it unnecessary to include more specific

direction in its regulations. The Bureau also wishes to note that

separate policy on the provisioning of wellness programs to staff and

to inmates does allow for participation in smoking cessation programs.

While budget and staff limitations initially may limit such staff and

inmate participation to those institutions most affected by the revised

regulations, the Bureau is committed to extending program opportunities

at all facilities.

Therefore, in light of the above comment and agency response, the

Bureau is adopting the proposed amendments as a final rule without

change.

The Bureau of Prisons has determined that this rule is not a

significant regulatory action for the purpose of E.O. 12866, and

accordingly this rule was not reviewed by the Office of Management and

Budget. After review of the law and regulations, the Director, Bureau

of Prisons has certified that this rule, for the purpose of the

Regulatory Flexibility Act (Pub. L. 96-354), does not have a

significant impact on a substantial number of small entities.

List of Subjects in 28 CFR Part 551

Prisoners.

Kathleen M. Hawk,

Director, Bureau of Prisons.

Accordingly, pursuant to the rulemaking authority vested in the

Attorney General in 5 U.S.C. 552(a) and delegated to the Director,

Bureau of Prisons in 28 CFR 0.96(p), part 551 in subchapter C of 28

CFR, chapter V is amended as set forth below.

SUBCHAPTER C--INSTITUTIONAL MANAGEMENT

PART 551--MISCELLANEOUS

1. The authority citation for 28 CFR part 551 continues to read as

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 1512, 3621, 3622, 3624, 4001,

4005, 4042, 4081, 4082 (Repealed in part as to offenses committed on

or after November 1, 1987), 4161-4166 (Repealed as to offenses

committed on or after November 1, 1987), 5006-5024 (Repealed October

12, 1984 as to offenses committed after that date), 5039; 28 U.S.C.

509, 510; Pub. L. 99-500 (sec. 209); 28 CFR 0.95-0.99.

2. Subpart N, consisting of Secs. 551.160 through 551.163, is

revised to consist of Secs. 551.160 through 551.164 as follows:

Subpart N--Smoking/No Smoking Areas

Sec.

551.160 Purpose and scope.

551.161 Definitions.

551.162 Designated no smoking areas.

551.163 Designated smoking areas.

551.164 Notice of smoking areas.

Subpart N--Smoking/No Smoking Areas

Sec. 551.160 Purpose and scope.

To advance towards becoming a clean air environment and to protect

the health and safety of staff and inmates, the Bureau of Prisons will

restrict areas and circumstances where smoking is permitted within its

institutions and offices.

Sec. 551.161 Definitions.

For purpose of this subpart, smoking is defined as carrying or

inhaling a lighted cigar, cigarette, pipe or other lighted tobacco

products.

Sec. 551.162 Designated no smoking areas.

All areas of Bureau of Prisons facilities and vehicles are no

smoking areas unless specifically designated as a smoking area by the

Warden as set forth in Sec. 551.163.

Sec. 551.163 Designated smoking areas.

(a) At all medical referral centers, including housing units, and

at minimum security institutions, including satellite camps and

intensive confinement centers, the Warden shall identify ``smoking

areas'', ordinarily outside of all buildings and away from all

entrances so as not to expose others to second-hand smoke.

(b) At all low, medium, high, and administrative institutions other

than medical referral centers, the Warden shall identify outdoor

smoking areas and may, but is not required to, designate a limited

number of indoor smoking areas where the needs of effective operations

so require, especially for those who may be employed in, or restricted

to, a nonsmoking area for an extended period of time.

(c) To the maximum extent practicable nonsmoking inmates shall be

housed in nonsmoking living quarters.

Sec. 551.164 Notice of smoking areas.

The Warden shall ensure that smoking areas are clearly identified

by the appropriate placement of signs. The absence of a sign shall be

interpreted as indicating a no smoking area. Appropriate disciplinary

action shall be taken for failure to observe smoking restrictions.

[FR Doc. 94-16309 Filed 7-5-94; 8:45 am]

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